from the because-that's-how-they-roll-in-Ferguson dept

Back in the summer, we had a few stories about the police in Ferguson arresting reporters. In response to that, the police signed a court agreement promising not to interfere with the media -- which they ignored the very same day. More recently, a court found that the "5 second rule" that police had made up as part of enforcing a "failure to disperse" law was unconstitutional, but it would appear that the police still don't care.

Over the weekend, police in Ferguson arrested yet another journalist, Trey Yingst. The St. Louis County Police Department said he was arrested for (you guessed it) "failing to disperse" when commanded to do so. Specifically, the police say he was in the street and refused to leave.

@TreyYingst reporter from D.C. taken into custody for failure to disperse. Was asked to leave street by the commander and refused. #Ferguson

Even worse, as Adam Steinbaugh points out, on Friday, there was a series of federal court orders telling the state, county and city police not to interfere with journalists doing reporting in Ferguson. According to the order [pdf], which covers the St. Louis County police:

IT IS HEREBY ORDERED that the [police] shall not enforce or threaten to enforce any rule, policy, or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest, or interfere with any individual, including any member of the media or member of the public photographing or recording in public places unless that person is threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.

One of the other orders, directly targeting the County of St. Louis states [pdf]:

IT IS HEREBY ORDERED that Defendant County of St. Louis, Missouri, its officers, agents, servants, employees, attorneys, and all persons under their supervision, or within their control, are permanently enjoined from interfering with individuals who are photographing or recording at public places but who are not threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.

Of course, this is in Ferguson, Missouri, where people have been gathering all weekend to await the grand jury results concerning officer Darren Wilson, who shot and killed Mike Brown in August, setting off the widespread protests. And, in Ferguson, it seems that basic concepts in law no longer apply -- even when courts directly call the police out on them. And, of course, officials in Ferguson have been especially obnoxious towards the press. Beyond just basic stonewalling and threatening/arresting multiple reporters, officials in Ferguson have tried to avoid releasing documents by putting ridiculous price tags on FOIA requests and even requesting a no fly zone to block out press aircraft (while pretending it was for "safety"). Is it really any wonder they'd continue to ignore direct court orders in order to harass and intimidate journalists?

from the australia's-sopa dept

We've been covering the discussion around copyright reform down in Australia for a while, and it's continuing to get worse and worse. As you may recall, after a long and detailed process, involving careful input from a variety of stakeholders on all sides of the equation, the Australian Law Reform Commission (ALRC) came out with a set of proposals that were actually pretty good, including things like introducing fair use to Australia.

Of course, rather than pay attention to this detailed and thoughtful process, the current Attorney General, George Brandis, decided to only listen to Hollywood. This created quite a telling discussion when Senator Scott Ludlam asked Brandis if he had consulted any consumer rights groups or other copyright experts concerning his copyright plans, and Brandis refused to answer, instead getting angry and insisting that Hollywood's interest is the public interest. Brandis also claimed -- totally incorrectly -- that Australia has no laws against online piracy and is "the worst offender of any country in the world when it comes to online piracy." That's simply bogus, and appears to just be a Hollywood talking point.

Given all that, it was fully expected that Brandis would basically obey Hollywood's orders -- especially given that the main discussions he'd been having came with the "Australian Screen Association," which is a rebranded version of AFACT, which a Wikileaks State Department cable revealed was 100% controlled by Hollywood interests in the US.

And, indeed, Brandis has delivered his gift proposal to (or, should we say from?) Hollywood. It involves three main proposals, but the big one is overturning the important iiNet decision that highlighted that ISPs are protected from liability for users infringing, because they're not the proactive party. In other words, under that ruling, ISPs can't be forced to be copyright cops. Brandis' plan would wipe that out, requiring ISPs to spy on user activity and try to block any "bad stuff" from happening, or they would face liability:

The Government believes that even where an ISP does not have a direct power to prevent a person from doing a particular infringing act, there may still be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement.

Extending authorisation liability is essential to ensuring the existence of an effective legal framework that encourages industry cooperation and functions as originally intended, and is consistent with Australia's international obligations.

"Extending authorization liability" sounds so polite. But what it really means is "making ISPs into copyright cops" and encouraging them to spy on and block all sorts of activity, legal or not, to avoid liability from massive copyright infringement lawsuits (like the one against iiNet). Also note the famous "consistent with international obligations" line. We've been saying for nearly a decade now, whenever anyone brings up "international obligations," you know they're being intellectually dishonest.

The second part of the proposal is basically Australia's version of SOPA. It would allow for website blocking of "infringing overseas sites." And it would be like the original SOPA, with a "private right of action," allowing entire websites to be blocked on the say so of the copyright holder. A court would have to approve it, but it would likely be an incredibly one-sided hearing, as it's unlikely foreign websites will travel to Australia.

A similar provision in Australian law could enable rights holders to take action to block access to a website offering infringing material without the need to establish that a particular ISP has authorised an infringement.

The final piece of the plan appears to be an attempt to buy off internet companies that are likely to oppose this plan, in that it extends safe harbor protections to more of them. Basically, this is a cynical ploy to try to split the obvious opposition of this plan. Without this, it would clearly be both internet companies and internet access providers (ISPs) opposing. But here the idea is that if they barely extend a few safe harbor protections to more internet companies, maybe those guys won't oppose this effort as strongly.

Either way, this is pretty much what was expected. It's an evidence-free proposal based on the fear mongering claims of Hollywood, and an attempt to turn ISPs into Hollywood's personal copyright cops, spying on your usage and doing anything to block infringement, even if that also wipes out plenty of legitimate speech as well.

Thankfully, Senator Ludlam (who exposed Brandis' unwillingness to even answer whether he met with consumer rights groups) has already spoken out about this proposal:

Such a move would unleash a wave of lawsuits as giant film and TV studios re-open legal action to try and get Australian ISPs to act as ‘copyright police' in penalising their customers for online copyright infringement.

The paper also discusses a range of other options for tackling the issue, including forcing ISPs to block websites, sending users warning notices, and even limiting the broadband connections of those who are only suspected of pirating content online.

What the discussion paper doesn't contain is any attempt to address the real reason why Australians pirate films and TV shows online - the ongoing refusal of giant corporations to make their content available in an affordable and timely fashion.

Just getting access to watch HBO's popular Game of Thrones show can cost Australians up to $50 a month - and the show is only available week by week from one source: pay TV giant Foxtel, which is co-owned by Telstra and Rupert Murdoch's News Corp.

The Greens believe the Abbott Government is trying to protect an outdated dinosaur of a business model where a small group of mega-corporations control all access to the content Australians want to access. This isn't a surprise, given the hundreds of thousands of dollars film and TV studios have recently donated to the Coalition.

from the because-of-course-they-would dept

Since the death of SOPA/PIPA two and a half years ago, Hollywood (and Congress) have tiptoed lightly over any proposed copyright reform, insisting that they've learned their lesson and that they won't try to bring back SOPA. Of course, with the big comprehensive copyright reform effort going on in DC, you can totally expect that the legacy copyright industry will do its best to put in place the parts of SOPA that it most wanted. That process appears to have kicked off in earnest last week, with the IP Section of the American Bar Association releasing a White Paper entitled A Call For Action For Online Piracy And Counterfeiting Legislation. I should warn you that, according to the genius intellectual property experts at the ABA's IP Section, clicking on that link may be a violation of their copyright. It's not, of course, but that doesn't stop them from claiming it is at the beginning of the paper:

Clicking on the link they put on their site would be "transmitting" the document by "electronic" means "without the prior written permission of the publisher," even if you could argue that they gave another form of permission by posting the damn thing. Oh, and of course, by copying that little tidbit and posting it here, I have also violated the bogus rules claimed in that very snippet.

You'd think that the IP Section of the ABA would understand things like fair use and copyfraud, but apparently not. Anyway, the document itself weighs in at a hefty 133 pages, and you can go through the whole thing, but it's basically setting the stage for trying to make internet companies copyright cops again, just as in SOPA. It talks up the problem of "Predatory Foreign Websites," (PFWs -- which is apparently the new nickname for "foreign rogue websites" that were the central focus of SOPA and PIPA. Then it talks about "intermediaries" (i.e., internet companies) and how those poor, poor Hollywood copyright lawyers can't really go after those "PFWs" and the best thing to do is to... put the liability on the internet companies themselves. Because of course that's been the plan all along: make Silicon Valley Hollywood's private copyright cops, and if they don't do a good job, fine 'em to hell.

First, it suggests that, even under existing law, courts could order internet companies to block infringing sites or activity under some unique, but barely tested, parts of the law. But, of course, it says this is not enough. It's main recommendations are summarized as follows:

Supplement the following civil remedies (which are already available under U.S. law to
redress piracy and/or counterfeiting that occurs within U.S. borders) to redress online piracy
and counterfeiting undertaken by PFWs, in cases where the intermediary(y)(ies) in question
does not taken action voluntarily:

injunctions directing financial payment processors to freeze the assets of PFWs and to
cease doing business with such websites;

injunctions preventing online advertisers from paying PFWs or from displaying
further ads on those websites;

injunctions permitting the seizure and destruction of counterfeit or pirated goods, or
their delivery to rightsholders who are willing to bear the shipping and handling
costs;

injunctions requiring the immediate removal of pirated works and/or content, counterfeit marks, logos, insignia, or trade dress that have been made available, displayed, or otherwise promoted by PFWs; and

monetary damages in the form of disgorgement of profits of the PFWs achieved as a result of the illegal activity, which shall be paid to the rightsholder from the assets frozen or advertising/sponsored links revenue that had been withheld by the intermediaries as described in points 1-3 above.

It goes on to bring back the "private right of action" part of SOPA, which was so problematic and so egregious that even Lamar Smith dropped it midway through the process in the original SOPA fight, in an effort that he hoped would allow the rest of the bill to go through. A "private right of action" would basically let companies declare some website a "Predatory Foreign Website," allowing them to then force internet companies to block them or take other actions against them, or risk significant liability. Basically, it's a private right of censorship that the entertainment industry could use against innovative website they don't like. While the paper admits that this was controversial in SOPA, it offers a modified "hybrid solution" that it thinks works better:

[T]he IPL Section recommends a hybrid solution, by which
rightsholders would be allowed to seek direct remedies directly against PFWs (who would have
notice and an opportunity to be heard, including as to any objection to being characterized as a
PFW) and direct remedies against one or more of the U.S. intermediaries identified above. This
provides full due process rights to the alleged PFW, both in cases where it is sued directly and in
cases where its status as a PFW is critical to the issuance of an injunction against one or more of the
intermediaries that it uses. Such a procedure is a little less convenient for rightsholders, but it
allows the site itself the maximum due process to defend itself against both the onus of being
labeled as a PFW (and resulting liability) and the cutoff of financial support from U.S. intermediaries.

See? No problem. If you're running an innovative website out of, say, Malaysia, and a Hollywood studio declares you a "Predatory Foreign Website," I'm sure you can just hop on the next flight to the US to defend yourself in court, right? Easy!

The paper then looks at "government" solutions, and praises ICE for its infamous domain seizure program, which we've reported on extensively. At least the paper acknowledges the fact that this program resulted in the seizure and censorship of perfectly legal websites like Dajaz1 and Rojadirecta for over a year, but brushes them off as not that big of a deal, beyond being a potential PR problem:

The circumstances surrounding Dajaz1 and rojadirecta.com have achieved a level of notoriety
among Internet freedom and civil liberties advocates that far surpasses their significance. Such
incidents are few in number relative to the amount of seizures overall

I'm curious how completely shutting down and censoring a popular internet publication and a widely used internet forum full of protected speech, both for over a year, without any legal basis whatsoever, could possibly lead to people overstating its significance. It seems like those situations have been completely understated in significance. If they had been, say, an actual newspaper, and the government had gone in and seized the printing presses for over a year, without a reason or any recourse, and then the government just returned the presses over a year later without anything as much as an "oops, sorry," would people have just let it go, the way it happened with both of those other websites?

Besides, the ABA report conveniently leaves out that those weren't the only domains that were seized in a faulty manner. There were at least two others I know of that protested the seizure on the same basis, but last I'd checked, the government was still holding onto both of those domains and simply refusing to respond to the lawyers associated with either site.

The one real concession the paper seems to make is that the DNS blocking provisions of SOPA and PIPA were probably a bad idea.

There's much more in the paper, and it's well worth reading, to get a sense of what the ABA IP Section (a lot of entertainment industry lawyers are in there) are thinking about how to get a SOPA-like law through in the future (probably during the comprehensive copyright reform effort). To be fair, the paper is fairly comprehensive in its thinking, and at least mentions people being opposed to its reasoning and why (it even cites Techdirt multiple times...). It also pays some lip service to actually paying attention to those concerns, but nearly all of the actual recommendations bring back SOPA-like ideas. It's troubling to see that the overall lesson of SOPA was clearly not learned, and they're clearly planning to try, try again.

from the questions-to-ask dept

It's no secret that the USTR has been pushing for copyright maximalist policies over the past few years (mostly done by a guy who recently went through the revolving door to become an MPAA lobbyist). However, one thing they keep claiming is that they're only looking to get other countries to match existing US laws, rather than expand them. That's clearly untrue if you look through the actual language being negotiated (only available via leaks). But, even so, it's pretty clear that the USTR is pushing an extreme maximalist approach. Last week, it released its latest Special 301 report, in which it names which countries are "naughty" about intellectual property. "Naughty" is not defined by any objective standard. Rather, the USTR asks various industry lobbyists to tell them which countries they dislike the most, and the USTR rewrites it into the list. The Special 301 process has long been a complete joke that even many maximalists recognize as silly (we heard the former head of the US Copyright Office once mock it).

The latest version of the report is more of what we've come to expect in previous reports. China has been naughty. India and Spain have been called out of class for a special extra review. Blah blah blah. But, it also notes that both Italy and the Philippines were removed from the Watch List "in recognition of their intellectual property rights accomplishments." Both countries have certainly become much more aggressive on copyrights recently -- and they've done so by being a lot more aggressive than the US. In fact, as we've been reporting, Italy made a dangerous move to allow an administrative agency to issue censorship bans on websites without any judicial process. And, in fact, it's already begun issuing questionable death sentences on sites, forcing ISPs to block access.

If this sounds like the approach originally considered in SOPA (actually, it's going even further than that), that was then massively rejected by the public, you'd be exactly right. So you would think that the USTR would, perhaps, chastise Italy for such an abuse of intellectual property for censorship in a manner that the American public (who the USTR is supposed to represent) have rejected. But, nope. The USTR praises this very approach:

Italy is removed from the Watch List in the 2014 Special 301 Report in
recognition of the Italian Communications Regulatory Authority’s (AGCOM) adoption,
on December 12, 2013, of long-awaited regulations to combat copyright piracy over the
Internet.

In other words, here you have the USTR basically admitting that it approves of countries moving to an approach even more extreme than SOPA. Of course, the reality here is pretty transparent. If Italy and others implement SOPA, down the road, it can be negotiated into various international agreements, so that the US will claim that it has to implement SOPA to "comply with our international obligations." It's been done before. That's exactly how we got the DMCA. Congress initially rejected it, and so Bruce Lehman specifically went to WIPO to get the DMCA put into the 1996 Copyright Treaty... and, voila, two years later Congress said it had to pass the DMCA to comply with that treaty.

The USTR has long been a supporter of maximalist policies. Praising Italy for implementing an even more extreme version of SOPA just highlights how little concern the USTR has for the interests of the American public. Instead, it appears almost entirely focused on the interests of the most powerful lobbyists (who, not surprisingly, are also the USTR employees' likely future employers).

It turns out that both headlines are accurate, though it's the second one that's the bigger issue here. You can see the details laid out (quite clearly) by Singapore's Ministry of Law. It notes that they currently have a DMCA-like notice-and-takedown setup, but have apparently decided that this is somehow too burdensome for rightsholders who have pushed the government to come up with an alternative plan (gee, this sounds familiar...). They don't seem to explain why this is so burdensome, they just say that there's too much "uncertainty" in having to actually "establish the liability for infringement." So, rather than do that, it appears that the Singaporean government is willing to chuck basic due process, and go for flat-out censorship without due process.

Under the proposed legislative changes, rights holders will also be allowed to apply directly to the Courts for injunctions to prevent access to pirate sites without having to first establish ISPs’ liability for copyright infringement. This judicial process is more efficient and avoids implicating the ISPs unnecessarily.

So, just as in SOPA, the idea is that rightsholders can suddenly declare that certain sites are "rogue" and courts can agree to wipe them off the face of the internet, by ordering ISPs to block access to them. The Singaporean government insists this won't be a problem for legitimate sites, because it seems to have bought into the Hollywood fallacy that what is a "legitimate" site and what is a "pirate" site are somehow obvious, rather than a spectrum in which nearly everything is some form of gray.

This is targeted at websites that show a blatant disregard for, and that clearly infringe, copyrights. Legitimate search engines and content sharing sites such as Google and YouTube will not be affected.

Notice how they just blithely insist that YouTube is legitimate. That may well be news to YouTube's lawyers, who just concluded (via settlement) a seven-year battle in which Viacom literally insisted that YouTube was the equivalent of a video Grokster (the file sharing service that lost its court case for enabling infringement). And that's where the real problem is. It's easy to claim that it's obvious when a site is legitimate and when it's not, but reality doesn't work that way. For years, many people were pretty sure that Napster was perfectly legitimate under the rules of the Sony Betamax ruling, but then a court decided otherwise. Similarly, many assumed that YouTube was illegal, until that case settled. Hell, even the VCR was a "pirate tool" until the Supreme Court ended that argument thirty years ago.

And, of course pretty much all of modern entertainment history is filled with similar examples of new innovations in the delivery and consumption of content that are at first deemed illegal, until suddenly they're not. The player piano, the phonograph machine, radio, television, cable television, the photocopier, the DVR, the VCR, the mp3 player, and many other innovations were first decried as "pirate" technologies. And then they weren't. But with the Singaporean government insisting that it's somehow obvious which ones are legitimate and which ones are not, Singapore is almost guaranteeing that important legitimate innovations that help move the industry forward will, instead, get censored and blocked across the entire country.

That's no way to present yourself as an innovative country.

So, yes, later in the document, they reject three strikes (and administrative, rather than judicial, blocking) as too draconian and intrusive:

Countries like Spain and Malaysia have implemented an administrative site-blocking approach where rights holders can apply for site-blocking orders from a Government-appointed body. Countries like France have introduced a “graduated response” system where individual internet users are notified of their infringing activity by the ISP, and can be penalised if they continue their infringing activity despite repeated notifications (or “warnings”).

We considered the alternatives above but assessed that they may not be suitable in Singapore’s context as they are too intrusive on internet users.

But, in many ways, the alternative "solution" that Singapore appears to be supporting is worse than three strikes. It's outright censorship against innovation, based on a faulty belief that it will be immediately obvious whether or not new innovations and technologies are "legitimate" or "pirates."

The fundamental rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish.

In other words, it appears that broader injunctions, which do not specify exactly what an ISP must do to block access, are allowed. However, ISPs themselves will then be responsible for "taking all reasonable measures" to block access, as long as those measures don't block lawful content. That seems like kind of a huge mess for ISPs who will now have to deal with injunctions asking them to block stuff, where they'll be required to show "reasonable measures" but will also need to balance that against blocking access to legitimate content. This decision seems to try to thread a needle, where the result is likely to be many new lawsuits as censorship injunctions are issued, and ISPs have to figure out how to balance the order without blocking access to legitimate content. It seems likely that many ISPs will opt for limiting their own liability by defaulting towards overblocking to avoid having to face challenges suggesting they didn't take enough "reasonable measures."

from the well,-if-you've-already-fucked-up-copyright-law-in-one-way... dept

It would appear that actress Cindy Lee Garcia and her lawyer Chris Armenta are figuring that since they've already mucked up copyright law with their ridiculous victory in the 9th Circuit that they might as well go on pushing the boundaries of copyright law to further ridiculous extremes. If you don't recall, the 9th Circuit, via Judge Alex Kozinski found the actress had a magical "copyright interest" in the 5 seconds of Innocence of Muslims 13-minute trailer that she appeared in, allowing her to demand that Google takedown every copy of the video. Multiple copyright experts were flabbergasted at this ruling, and a variety of folks have been lining up to support future proceedings in the case (starting with a possible en banc review of whether or not the court should grant a stay on the ruling until even more review can occur).

In the midst of this, Garcia has filed a motion for contempt against YouTube and Google arguing that the company has failed to abide by the takedown order. However, as the details show, Garcia and Armenta are applying some rather questionable interpretations of copyright law yet again -- though they're interpretations helped along by a bunch of additional problems with Kozinski's order (problems that were mostly ignored given the immensity of the ridiculousness of the key parts of the original order). It seems that their main complaint is that Google only blocked the videos for people in the US. That is, if you visit a foreign version of YouTube, you can still see the clips. That may be true, but it's hard to see how that's contempt. US copyright law only applies in the US. The US court can't realistically order Google to remove the video in other countries, since US courts don't have jurisdiction there. Imagine the flip side: if a court in, say, China, ruled that Google had to block a certain video -- and then found Google in contempt for not blocking viewers in the US from accessing that content. Most people would flip out.

But Garcia and her lawyer seem to think that a single copyright ruling in the US is grounds for worldwide censorship. That's fairly incredible. Though, once again, Judge Kozinski is largely to blame here, as his order certainly could be read to suggest (clearly incorrectly) that he has the power to censor the content globally.

Google has failed to comply. As of this morning, at 7:55 a.m EST, a version of Innocence of Muslims that includes Ms. Garcia's performance is still available on Google's Worldwide Platform and also viewable in Egypt, the nation in which the fatwa was issued for Ms. Garcia's execution. All a viewer needs to do to view a copy of the video that contains the infringing material from any computer in the world and within in YouTube's global platforms--and therefore is governed by the takedown order--is to change his or her settings to any country platform, such as "Egypt."

That's not the only problem with the motion. It also seems to completely ignore existing rulings (such as in the Viacom case) that state that in issuing takedowns, you need to point to the specific instance of infringement, rather than just "make all of this disappear." That's quite reasonable, because content itself is not infringing absent context. There may be perfectly valid versions of the content that are fair use -- especially given the news interest in this particular ruling. But Garcia is insisting that Google has to proactively police all copies and block them -- again, thanks in part to Kozinski's overly broad language in his order that implies a duty to police this issue, despite the law not saying that at all.

Furthermore, the DMCA's 512(j) itself says that injunctions granted under it can only apply to "a particular online site," rather than some sort of global ban across every site in every locale. Kozinski, once again, seems to have gone beyond what the law allows in his weird quixotic quest to twist copyright law into something it is not.

For Google, it is a pedestrian, technical exercise to take down those URLs, to hire an intern to just search for "Innocence of Muslims," and their suggestion that Ms. Garcia should comb through YouTube again, and provide Google with the information again, belies Google's claim that it is in compliance.

While Kozinski seems to ignore this, the DMCA has never had a forward-looking duty to monitor and block all instances of a particular piece of content. It appears that Garcia and her lawyer are trying to simply make up new law here. As we noted just recently, there are some efforts underway to change the DMCA from a "notice and takedown" provision to "notice and staydown" but that's simply not the law today, no matter what Kozinski thinks it is.

The motion goes even further, insisting that the only way to comply with a takedown notice is to completely remove the file from the server, rather than just disable it from being viewable:

Additionally, as of the writing of this brief, Google has not "taken down" anything. Instead, it has merely disabled the various uploads displaying Innocence of Muslims in forms that contain infringing content, leaving the content up and viewable via thumbnails.

Of course, the actual law says that upon notification a company only needs to "remove, or disable access to, the material." Once again, it seems that this is another problem with Kozinski's overly broad order, which declared that Google had to "takedown" the content, rather than just disable it, even as the law has said disabling it should be sufficient.

Furthermore, the motion seems to suggest that Google has a further duty (not even discussed in Kozinski's order) to somehow block Google's search engine from ever pointing to the video anywhere else in the world.

Google has failed to remove full copies of the video from its platforms, has failed to prevent new uploads of the video to YouTube, and continues to publish on its Google search index platforms links to numerous sites and platforms where the video can either be directly viewed or where it can be easily downloaded and saved to viewers' computers.

So now they want to censor Google search results to other sites as well? Yikes.

Indeed, Google has not even made a pro forma attempt to comply with the order, choosing instead to temporarily disable only a few copies of the video that contain infringing content and putting in their place a snide message to the public that states:

"This video is no longer available due to a copyright claim by an actress over her 5-second appearance in the video. A U.S. court has ordered Google to remove the video. We strongly disagree with this copyright ruling and will fight it."

As is clear from Google's near-total disregard of the order and its ridiculing of the Court's authority, Google is thumbing its nose at the Court and making a mockery of our judicial system in an apparent attempt to encourage the public to blame and harass Ms. Garcia and to continue to use infringing content to generate YouTube revenues from traffic directed through the 852 URLs that have illegally posted the content.

Of course, all of Google's responses so far do not seem like "contempt" or "thumbing its nose," but rather following through with the exactly what the law says is proper. Disabling access to the known videos in the US. This is the same way that Google responds to legal takedowns in other countries as well -- disabling it for those countries only. And, yes, Kozinski's order could be read to demand further actions, including fulling taking down all such videos, even those outside the US, but those are just additional problems with Kozinski's order, which go way beyond what the law says. Everyone has reasonably focused on the ridiculousness of the original claim of giving Garcia a copyright interest in the film, and to a lesser extent the First Amendment-defying gag order he placed on Google. But, the details of this contempt motion highlight that Kozinski got a lot of the little things completely wrong as well, such as ordering Google to go way beyond what copyright law requires.

This is a bad case on so many levels, but it could be even more ridiculous if these kinds of precedents by Kozinski's blatant misreading of the law are allowed to stand. The dangerous precedents go beyond just allowing an actor in a film to claim a copyright on the film, but further allowing bogus "worldwide" injunctions and a requirement to completely "take down" content, rather than just disable access to it (which creates a whole host of other problems). Once again, it seems abundantly clear that Kozinski simply went off the reservation with his ruling, ignoring what the law actually says to satisfy his own desire to censor this video.

A British judge ordered the Journal and David Enrich, the newspaper's European banking editor, to comply with a request by the U.K.'s Serious Fraud Office prohibiting the newspaper from publishing names of individuals not yet made public in the government's ongoing investigation into alleged manipulation of the London interbank offered rate, or Libor.

The order, which applies to publication in England and Wales, also demanded that the Journal remove "any existing Internet publication" divulging the details. It threatened Mr. Enrich and "any third party" with penalties including a fine, imprisonment and asset seizure.

Except, as the Journal notes, it had already published the story out on the wire, and while it took down its own web story, and is protesting the injunction, it's not at all difficult to find other stories that published the names:

In Friday’s U.S. edition of the newspaper, 11 names were printed, including former UBS AG (NYSE:UBS) and Citigroup Inc. (NYSE:C) trader Tom Hayes; his former boss at UBS, Michael Pieri; and two former brokers at R.P. Martin Holdings Ltd., Terry Farr and James Gilmour.

And, of course, anyone who got the print version, which had already gone to press, could see the names as well:

And, in the end, all this has really done is draw that much more attention to the names.

from the it's-a-step,-but... dept

In a move that struck some by surprise, the US Patent Office and the Department of Justice put out an interesting statement arguing that companies need to stop abusing promises for fair, reasonable and non-discriminatory (FRAND) licenses (pdf) for standards essential patents (SEPs). They argued, quite reasonably, that lawsuits over SEPs can stifle innovation and block competition. Well, duh. While many are interpreting this as having to do with the FTC/Google settlement, which touched on exactly this issue, the DOJ/USPTO letter seems much more focused on trying to knock some sense into the International Trade Commission (ITC) concerning how it deals with the patent cases it hears. As we've been discussing for years, patent holders get two (entirely) separate cracks at using the legal process to slap down those they accuse of patent infringement. First, there's the federal court system, which is what most people think of when they think about patent disputes. The second is going to the ITC and seeking to ban the product from entering the country (i.e., getting an injunction).

The ITC process does not follow the same rules or timeline as the legal process and so you could have a situation where courts go one way and the ITC goes another. Either way, an injunction via either the courts or the ITC is like a death sentence for a product, so most companies figure out a way to "settle" a case when it reaches the injunction stage, so it becomes like a forced license at a ridiculously high price. Thanks to the MercExchange ruling at the Supreme Court, the federal courts are much more hesitant to issue injunctions these days, but for the ITC it's the only remedy they have -- and while they don't always use it, they do use it often enough.

The FTC has lately been expressing growing concern about the ITC's somewhat cavalier attitude towards the impact of the injunctions it gives out, and this DOJ/USPTO paper appears to be another push against the ITC. The statement makes it clear that the ITC needs to recognize that it's core mission is focused on what's best for "the public health and welfare of consumers," and thus, when it comes to standards essential patents, it needs to take into account whether or not the public good is actually served by issuing an injunction.

This is all good and we agree.

But... why is this limited to SEPs? This is an all too typical reaction from government bureaucrats on these issues. They're all up in arms that (*gasp*) companies might use the government granted monopoly privilege to do exactly what it's designed to do: to exclude others in order to drive up the price and limit competition. The real focus should be on whether or not the patents themselves are what's best for the public health and welfare, not whether or not the FRAND agreements on the tiny subset of all the patents out there, the SEPs, are what's best.

The whole thing is somewhat comical when you think about it. The government gives companies the ability to exclude others via a government granted monopoly. It doesn't take a degree in economics to understand that when you give someone the right to exclude others, limit competition and drive up the price of things, that's what's going to happen -- and it's not going to be the best thing for the public health. But rather than recognize that crux of the issue, the response is just to focus on a core subset of patents, the standard essential ones.

Oh, and concerning the Google/FTC settlement, Google finally dropped its ITC effort against Microsoft. Honestly, Google should have done that a while back. Yes, Google inherited the situation from Motorola, but what an amazing statement it would have made about the companies position on patents and the patent wars if it had simply dropped such ITC actions upon the close of the acquisition.

Either way, all of this is yet another example of just how broken the patent system remains. And while it's nice to see the DOJ and USPTO at least paying lip service to the problems of the patent system, it's unfortunate that they think the problem is about "standards essential patents," rather than patents themselves, which create the identical problem for others.

from the no-surprise dept

It appears that the rumors from last month were entirely accurate. The FTC more or less has admitted that it can't find any real antitrust problems with Google, but did get Google to agree to a few minor tweaks in how it operates -- which lets the FTC declare victory. On the big question of antitrust, however, which Microsoft and other sites led the charge on, the FTC came up completely empty, noting that the goal Google's practices was, in fact, to offer a better consumer experience, rather than to be anti-competitive.

The biggest "change" to Google's business practices is really from an issue they inherited: the handling of Motorola's standards essential patents. We were among those confused by Google's decision a year ago to continue Motorola's more aggressive practices with its standards essential patents, basically trying to get injunctions to block competitors who don't license at the (way too high) rates that Motorola was offering. This made no sense to us at the time, given Google's previous statements about the problems of the patent system. Here was a case where they had a chance to put their words into further action, and they didn't. And that became the biggest part of the FTC settlement. Seems like Google could have avoided a headache just by backing down initially. Either way, even the "settlement" aspect here is really small. Google has agreed that before seeking an injunction, it'll go to arbitration to determine what is a "fair and reasonable" royalty on those patents. To be honest, this seems like the kind of thing that Google was probably perfectly happy to "cave" on -- and it almost makes you wonder if they kept up Motorola's practices just to give the FTC some "red meat" to make FTC boss Jon Liebowitz happy.

There were a few other small changes, such as allowing sites to opt out of just Google News if they don't like traffic. In the past, sites had to opt out of all Google search if they didn't want to appear in Google News -- and some incredibly shortsighted news publications didn't like that. So, basically, now Google is giving them the ability to hurt their own traffic from Google News if they so choose. Also, Google will allow companies to more easily manage ad campaigns across multiple platforms, rather than effectively making them repeat the process for multiple platforms.

The end result here, even as the FTC declares victory, has to be seen as a big victory for Google. It made a few tweaks to its business practices -- most of which it probably should have done anyway (and some of which I think it should go even further on). And on the big question of "antitrust" and "search bias" the FTC came up totally empty -- even as FTC boss Liebowitz made it clear that he would have loved it if breaking up Google's monopoly was his legacy. As the FTC announcement notes, try as hard as they could, they just couldn't make the claim stick. I love the begrudging language they use here:

The FTC conducted an extensive investigation into allegations that Google had manipulated its search algorithms to harm vertical websites and unfairly promote its own competing vertical properties, a practice commonly known as “search bias.” In particular, the FTC evaluated Google’s introduction of “Universal Search” – a product that prominently displays targeted Google properties in response to specific categories of searches, such as shopping and local – to determine whether Google used that product to reduce or eliminate a nascent competitive threat. Similarly, the investigation focused on the allegation that Google altered its search algorithms to demote certain vertical websites in an effort to reduce or eliminate a nascent competitive threat. According to the Commission statement, however, the FTC concluded that the introduction of Universal Search, as well as additional changes made to Google’s search algorithms – even those that may have had the effect of harming individual competitors – could be plausibly justified as innovations that improved Google’s product and the experience of its users. It therefore has chosen to close the investigation.

In the end, this seems like a massive waste of taxpayer money and the FTC's time and resources. While the announcement claims they got Google to agree to "significant" changes in its business practices, that's a laughable claim when you look at the details.